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Summary matters (non specified proceedings) - plea of guilty or trial

Assessment criteria

For legal aid to be granted for non specified proceedings in the childrens court the following test must be satisfied:

If the most serious offence the applicant is charged with is an indictable offence the above assessment criteria do not apply please refer to specified proceedings being dealt with summarily in the childrens court.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • a completed and signed Legal Aid Queensland application form
  • if applicable, proof of income and assets (refer to the means test)
  • a copy of the charge or charges such as a notice to appear, bench charge sheet or Queensland court brief (QP9) material
  • a copy of the applicant’s criminal history and/or traffic record (if applicable)
  • details of the applicant's proposed defence to the charge(s) (if the applicant intends to enter a plea of not guilty)
  • any documentation that supports an applicant’s eligibility.

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with an application request for matters being dealt with summarily and attach:

  • a copy of the charge or charges such as a notice to appear, bench charge sheet or Queensland court brief (QP9) material
  • a copy of the applicant’s criminal history and/or traffic record
  • any documentation that supports an applicant’s eligibility
  • details of the applicants proposed defence to the charge(s) (if appropriate).
  • the "request to represent co-accused submission form and where the request is submitted from Legal Aid Queensland a copy of the appropriate internal delegate approval (if applicable).

The following documents are retained on file but may be requested by Legal Aid Queensland:

  • a completed and signed Legal Aid Queensland application form
  • if applicable, proof of income and assets (refer to the means test)
  • all documentation as outlined in the case management standards - criminal law.

Interpretation

Indictable / Non indictable offences

All Criminal Code Act 1899 offences are indictable at the child’s election.

Offences which are not indictable include those charged under the Education (General Provisions) Act, Summary Offences Act, Police Powers and Responsibilities Act.

Moynihan reforms did not change children's elections in relation to criminal law offences

Children charged with indictable offences (all charges listed in the criminal code) have an election in relation to whether the matter can proceed to indictment or not if the offence has a maximum penalty of less than 14 years. Offences where the maximum penalty is 14 years or more must proceed by way of indictment.

Real likelihood of being sentenced to a term of imprisonment

Real likelihood means the actual penalty the person could expect to receive. The actual penalty may depend on all of the following:

  • The nature and circumstances of the charge or charges.
  • The person’s prior juvenile and convictions (if any).
  • The seriousness of the offence (or the extent to which the law was broken) compared to other examples of the same offence (for example, the amount stolen, the nature of injuries, the amount of drugs).
  • Any mitigating or aggravating circumstances.
  • Community based orders are inappropriate.
  • Where the court must impose a penalty that includes jail time (for example three major traffic offences within a five year period).

Immediate incarceration

For the purposes of this guideline Legal Aid Queensland consider that immediate incarceration involves the applicant spending time in a correctional centre upon conviction and does not include instances where for example the client receives a suspended sentence or an intensive correctional order.

First time

Applicants who have previously been remanded in a correctional centre and have been found not guilty are not deemed to have served time in prison as Legal Aid Queensland does not consider the period served on remand as a term of imprisonment.

For applicants who have previously been remanded in a correctional centre and have been found guilty or pleaded guilty to a charge and upon sentence they are immediately released, Legal Aid Queensland considers that the applicant has previously been sentenced to a term of imprisonment.

The matter cannot be dealt with by a duty lawyer

Examples of when a plea of guilty in the childrens court cannot be dealt with by a duty lawyer are:

  • There is no duty lawyer service available on the day and the matter can not be adjourned to a day when a duty lawyer is available
  • There is no duty lawyer service at the court location
  • There is a requirement for the representing solicitor to gather additional information/evidence, such as witness statements, medical reports or financial reports (details must be included in the extra details section of the application form)
  • The time constraints on the duty lawyer prevents them from obtaining instructions due to the number of charges
  • It is a lengthy plea.

Duty lawyer services will be provided, without a grant of legal aid being made, for:

  • pleas of guilty for summary matters where the defendant is not eligible for legal aid (this includes indictable offences that are dealt with summarily and traffic offences where the defendant is at risk of imprisonment)
  • community based order breaches
  • bail breaches
  • first appearance on extradition proceedings
  • adjournments (remands)
  • bail applications
  • disqualified driving charges
  • traffic offences where mandatory imprisonment must be imposed as part or all of the punishment.

Charge does not involve a minor traffic prosecution or regulatory offence

Traffic charges that are considered major traffic prosecutions are:

  • driving under the influence of liquor (having a blood alcohol content (BAC) of 0.15% or more)
  • drive whilst disqualified by order of the court. (unless disqualified by a court, unlicenced driving is not a major traffic offence)
  • fail to provide breath/blood specimen
  • dangerous operation of a motor vehicle.

A regulatory offence is any offence contained in the Regulatory Offences Act 1985.

Disability or disadvantage

Legal Aid Queensland considers that a client has limited ability to give instructions because of a disability or disadvantage when the applicant has at least one of the following:

  • An intellectual disability
  • A mental illness or mental impairment
  • A physical disability
  • A sensory disability
  • They are not proficient in English and require an interpreter
  • They have literacy issues and there is significant material to be read.

Intellectual disability

An applicant will be considered under the intellectual disability criteria when their disability affects their ability to communicate or their thought processes, to the extent that it precludes self-representation.

The following examples may be considered when determining whether an applicant has an intellectual disability:

  • The applicant has written confirmation from a disability service provider confirming that they are currently receiving care and support
  • The applicant has written confirmation from a doctor or service provider confirming that they have an acquired brain disorder, an autistic spectrum disorder, a dementia disorder or an intellectual disability.

Mental illness or mental impairment

An applicant will be considered under the mental illness or mental impairment criteria when their disability affects their ability to communicate their thought processes, to the extent that it precludes self-representation.

The following examples may be considered when determining whether an applicant has a mental illness or mental impairment:

  • The applicant is currently receiving treatment or has a long standing history of treatment for a mental illness or mental impairment
  • The applicant has written confirmation from a doctor or service provider confirming that they have a mental illness or mental impairment
  • The applicant is subject to an involuntary treatment order.

Physical disability

An applicant will be considered under the physical disability criteria when their disability affects their ability to communicate, to the extent that it precludes self-representation.

The following examples may be considered when determining whether an applicant has a physical disability:

  • The applicant is currently receiving care and support from a disability service provider
  • The applicant has written confirmation from a doctor or service provider confirming that they have a physical disability.

Sensory disability

An applicant will be considered under the sensory disability criteria when their disability affects their ability to communicate, even with an interpreter, to the extent that it precludes self-representation.

The following examples may be considered when determining whether an applicant has a sensory disability:

  • The applicant is currently receiving care and support from a disability service provider
  • The applicant has written confirmation from a doctor or service provider confirming that they have a sensory disability.

Applicant is from a non-English speaking background and requires an interpreter

An applicant will be considered under this policy when they are unable to communicate or understand the court process, to the extent that it precludes self-representation.

The following examples which may be considered when determining whether an applicant requires the assistance of an interpreter to effectively communicate in English:

  • The applicant is from a non-English speaking background and requires the assistance of an interpreter to effectively communicate in English.

Applicant has significant literacy issues and there is significant material to be read

An applicant will be considered under the literacy criteria when there is significant material to be read that has a direct impact on the proceedings and the applicant’s literacy issues are such that it precludes self-representation.

When considering whether an applicant has literacy issues that are significant enough to preclude self-representation Legal Aid Queensland will consider the type of matter and the material involved. For example, it is unlikely that Legal Aid Queensland will fund applicants under this criteria for a plea of guilty in the magistrates court as it is considered that the applicant ability to enter a plea would not be significantly affected as there are duty lawyer services available to assist these clients.

Reasonable defence to the charge

Before a decision can be made as to whether an applicant for legal aid has a reasonable defence on any charge, reference must be made to the particular elements which constitute the offence. It is the responsibility of the applicant or their representative to submit to Legal Aid Queensland that there is a reasonable defence.

Legal Aid Queensland considers that a defendant has a reasonable defence if it can be demonstrated that:

  • There are credibility issues in favour of the defendant
  • Independent witness(es) written statements on file are likely to support a defence to the charge
  • On the basis of admissible evidence, the prosecution will be unable to prove an element of the charge
  • The defendant is likely to succeed on the basis of a chapter 5, other criminal code or other legislative defence.

Grant(s) of aid

The initial grant of aid for assistance in the childrens court is MG1.

Extension(s) of aid

Trial

Practitioners seeking an extension of aid to proceed to trial must complete a summary trial extension of aid request.

A grant of aid may be available for a trial in the childrens court provided the merits test and guideline 2 – summary trials in the magistrates court are met.

  • The grant of aid for a summary trial (solicitor only) is MG2.
  • The grant of aid for a summary trial where the solicitor will use counsel as an agent is MG3.

Counsel

A grant of aid may be available for a summary trial with counsel if the extent of funding guidelines for counsel are met. The grant of aid for a summary trial with counsel is MG4.

Additional days of trial

Where the summary trial exceeds one day, an extension of aid is available for the additional days of trial (solicitor only), the grant of aid is MG5.

Where the summary trial exceeds one day, an extension of aid is available for the additional days of trial (counsel acting as an agent for the solicitor), the grant of aid is MG6.

Where a summary trial with counsel exceeds one day, an extension of aid is available for solicitor and counsel for the additional days. The grant of aid is MG7.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

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